THIRD DIVISION

[G.R. No. 122308. July 8, 1997.]

PURITA S. MAPA, CARMINA S. MAPA and CORNELIO P.

MAPA, petitioners, vs. COURT OF APPEALS AND
TRANS-WORLD AIRLINES INC., respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioners.

Quisumbing, Torres & Evangelista for private respondent.

SYNOPSIS

Petitioners purchased two (2) TWA tickers in Bangkok, Thailand. Said tickers
are for Los Angeles — New York — Boston — St. Louis-Chicago. On August 27,
1990 petitioners Purita and Carmina S. Mapa departed for Boston, taking a connecting
flight on TWA's carrier TW 0901 from JFK Airport, checking in seven (7) pieces of
luggage at the TWA counter in the JFK Airport. Upon arriving in Boston petitioners
Purita and Carmina proceeded to the carousel to claim their baggages and found only
three (3) out of the seven they checked in. Despite TWA's assurance that their
luggages would be located within 48 hours, the same were never found. The total
value of the lost items amounted to $11,283.79. TWA offered to settle the case by
giving petitioners two options; (a) transportation credit for future TWA travel or (b)
cash settlement. Petitioners chose the first option, however, TWA disregarded
petitioners' option and unilaterally declared the payment of $2,560.00 as constituting
full satisfaction of petitioners' claim. Petitioners accepted the check for $2,560 as
partial payment for the actual cost of their lost baggages. Despite demands by
petitioners respondent TWA failed and refused without just cause to indemnify and
redress petitioners for grave injury and damages they have suffered.

Petitioners filed with the trial court a complaint for damages. The trial court
dismissed the case for lack of jurisdiction in light of Article 28(1) of the Warsaw
Convention. The trial court held that the Warsaw Convention is applicable in case at
bar, since the Philippines and the United States are parties to the convention, the

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 1

 contracts of transportation come within the meaning of "International Transportation."
The trial court also held that the Philippines, not being one of the places specified in
Art. 28 (1) of the Warsaw Convention where the complaint may be instituted then it
has no jurisdiction over the present case. On appeal to the Court of Appeals, the
appellate court affirmed the ruling of the trial court. Hence, the present petition. The
Supreme Court ruled that the contracts does not fall under the category of
international transportation as provided by the Warsaw Convention. The only way to
bring the contracts between petitioners Purita and Carmina Mapa on the one hand, and
TWA on the other, within the category of international transportation is to link them
or to make them an integral part of the Manila — Los Angeles travel of Purita and
Carmina through Pal aircraft. However, the alleged international tickets issued by
TWA were not presented in evidence, clearly then; there is at all no factual basis of
the finding that the TWA tickets were issued in conjunction with the international
tickets.

Petition granted and the challenged decision of the Court of Appeals is

reversed and set aside.

SYLLABUS

1. CIVIL LAW; CONTRACT OF TRANSPORTATION; WARSAW

CONVENTION; "INTERNATIONAL TRANSPORTATION," DEFINED. — As
provided in Article I(2) of the Warsaw Convention, a contract is one of international
transportation only if according to the contract made by the parties, the place of
departure and the place of destination, whether or not there be a break in the
transportation or a transshipment, are situated either within the territories of two High
Contracting Parties, or within the territory of a single High Contracting Party, if there
is an agreed stopping place within a territory subject to the sovereignty, mandate or
authority of another power, even though that power is not a party to this convention.
There are then two categories of international transportation, viz., (1) that where the
place of departure and the place of destination are situated within the territories of two
High Contracting Parties regardless of whether or not there be a break in the
transportation or a transshipment; and (2) that where the place of departure and the
place of destination are within the territory of a single High Contracting Party if there
is an agreed stopping place within a territory subject to the sovereignty, mandate, or
authority of another power, even though the power is not a party to the Convention.
The High Contracting Parties referred to in the Convention are the signatories thereto

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 2

 and those which subsequently adhered to it.

2. ID.; ID.; ID.; ADHERED TO BY THE REPUBLIC OF THE

PHILIPPINES. — In the case of the Philippines, the Convention was concurred in by
the Senate, through Resolution No. 19, on 16 May 1950. The Philippines instrument
of accession was signed by President Elpidio Quirino on 13 October 1950 and was
deposited with the Polish Government on 9 November 1950. The Convention became
applicable to the Philippines on 9 February 1951. Then, on 23 September 1955,
President Ramon Magsaysay issued Proclamation No. 201, declaring the Philippines'
formal adherence thereto, "to the end that the same and every article and clause
thereof may be observed and fulfilled in good faith by the Republic of the Philippines
and the citizens thereof.

3. ID.; ID.; ID.; WHEN CONTRACT IS NOT OF INTERNATIONAL

TRANSPORTATION; CASE AT BAR. — The contracts of transportation in this
case are evidence by the two TWA tickets, No. 015:9475:153:304 and No.
015:9475:153:305, both purchased and issued in Bangkok, Thailand. On the basis
alone of the provisions therein, it is obvious that the place of departure and the place
of destination are all in the territory of the United States, or of a single High
Contracting Party. The contracts, therefore, cannot come within the purview of the
first category of international transportation. Neither can it be under the second
category since there was NO agreed stopping place within a territory subject to the
sovereignty, mandate, or authority of another power. It must be underscored that the
first category of international transportation under the Warsaw Convention is based
on "the contract made by the parties." TWA does not claim that the Manila-Los
Angeles contracts of transportation which brought Purita and Carmina to Los Angeles
were also its contracts. It does not deny the assertion of the petitioners that those
contracts were independent of the TWA tickets issued in Bangkok, Thailand. No
evidence was offered that TWA and PAL had an agreement concerning transportation
of passengers from points of departures not served with aircrafts of one or the other.
There could have been no difficulty for such agreement, since TWA admitted without
qualification in paragraph 1 of its Answer to the second Amended Complaint the
allegation in paragraph 1.1 of the latter that TWA "is a foreign corporation licensed to
do business in the Philippines with office address at Ground Floor, Saville Building,
Sen. Gil J. Puyat Avenue, corner Paseo de Roxas, Makati, Metro Manila."

4. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; EVIDENCE

SHOULD HAVE BEEN OFFERED AT THE PRELIMINARY HEARING. — TWA
should have offered evidence for its affirmative defenses at the preliminary hearing
therefor. Section 5 of Rule 16 of the Rules of Court expressly provides: SEC. 5.
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 3
 Pleading grounds as affirmative defenses. — Any of the grounds for dismissal
provided for in this rule, except improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing may be had thereon as if a motion to dismiss had
been filed. Without any further evidence as earlier discussed, the trial court should
have denied the affirmative defense of lack of jurisdiction because it did not appear to
be indubitable. Section 3 of Rule 16 of the Rules of Court provides: SEC. 3. Hearing
and order. — After hearing the court may deny or grant the motion or allow
amendment of pleading, or may defer the hearing and determination of the motion
until the trial if the ground alleged therein does not appear to be indubitable.

DECISION

DAVIDE, JR., J : p

The main issue in this petition for review under Rule 45 of the Rules of Court
is the applicability of Article 28(1) of the Warsaw Convention; 1(1) which provides as
follows:

ARTICLE 28.(1) An action for damages must be brought, at the

option of the plaintiff, in the territory of one of the High Contracting Parties,
either before the court of the domicile of the carrier or of his principal place of
business, or where he has a place of business through which the contract has
been made, or before the court at the place of destination.

We are urged by the petitioners to reverse the 31 May 1995 Decision of the
Court of Appeals in CA-G.R. CV No. 39896 2(2) affirming the 24 July 1992 Order of
the Regional Trial Court of Quezon City Branch 102, which dismissed Civil Case No.
Q-91-9620 3(3) on the ground of lack of jurisdiction in view of the aforementioned
Article 28(1) of the Warsaw Convention.

The antecedent facts, as summarized by the Court of Appeals, are as follows:

Plaintiffs Cornelio P. Mapa and Purita S. Mapa are respectable members

of the society. Mr. Mapa is an established businessman and currently the
Regional General Manager of Akerlund and Rausing, a multinational packaging
material manufacturer based in Manila. He was previously the Senior Vice
President of Phimco Industries, an affiliate company of Swedish Match
Company. Mrs. Mapa is a successful businesswoman engaged in the
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 4
 commercial transactions of high value antique and oriental arts decor items
originating from Asian countries. Carmina S. Mapa is the daughter of plaintiffs
Purita and Cornelio and is a graduate of the International School in Bangkok,
Thailand, now presently enrolled at the Boston University where she is majoring
in communication. cdasia

Plaintiffs Mapa entered into contract of air transportation with defendant

TWA as evidenced by TWA ticket Nos. 015:9475:153:304 and
015:9475:153:305, purchased in Bangkok, Thailand. Said TWA tickets are for
Los Angeles-New York-Boston-St. Louis-Chicago. . .

Domicile of carrier TWA is Kansas City, Missouri, USA. Its principal

place of business is Kansas City, Missouri, USA. TWA's place of business
through which the contracts were made is Bangkok, Thailand. The place of
destination is Chicago, USA.

On August 10, 1990, plaintiffs Carmina and Purita left Manila on board
PAL flight NO. 104 for Los Angeles. Carmina was to commence schooling and
thus was accompanied by Purita to assist her in settling down at the University.

They arrived in Los Angeles on the same date and stayed there until
August 14, 1990 when they left for New York City.

On August 14, 1990, plaintiffs Purita and Carmina S. Mapa arrived at

the John F. Kennedy (JFK) Airport, New York, on TWA Flight No. 904.

On August 27, 1990, plaintiffs Purita and Carmina S. Mapa departed for
Boston, taking a connecting flight on TWA's carrier, TW 0901, from JFK
Airport, New York, to Boston's Logan Airport, checking in seven (7) pieces of
luggage at the TWA counter in the JFK Airport. The seven baggages were
received by a porter who issued seven TWA baggage receipts numbered
17-8270, 71, 72, 73, 74, 75, and 76 therefor.

From the entrance gate of the terminal building, plaintiffs Purita and
Carmina proceeded to TWA's ticket counter and presented their confirmed
TWA tickets numbered 015:9475:153:304 and 015:9475:153:305 with a 3:00
p.m. departure time. They were issued their boarding passes and were instructed
to proceed to gate 35 for boarding. At about 2:40 p.m., plaintiffs noticed that
there was still no instruction to board the aircraft so they made inquiries. The
TWA ground stewardess informed plaintiffs that they were at the wrong gate
because their flight was boarding at gate 1. Upon hearing this, plaintiffs rushed
to gate 1 which was in another building terminal. At gate 1, they were told by a
TWA ground stewardess that flight 901 had just departed. However, they were
consoled that another TWA flight was leaving for Boston after 30 minutes and
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 5
 plaintiffs could use the same boarding pass for the next flight. At around 3:15
p.m., plaintiffs Purita and Carmina were able to board the next flight. However,
the plane was not immediately cleared for take off on account of a thunderstorm.
The passengers were instructed to stay inside the aircraft until 6:00 p.m. when
the plane finally left for Boston.

Upon arriving in Boston, plaintiffs Purita and Carmina proceeded to the

carousel to claim their baggages and found only three out of the seven they
checked in, to wit: one Samsonite on the carousel, another Samsonite lying on
the floor near the carousel and a third baggage, an American Tourister, inside
the unclaimed baggage office. Plaintiffs immediately reported the loss of their
four baggages to the TWA Baggage Office at Logan Airport. TWA's
representative confidently assured them that their baggages would be located
within 24 hours and not more than 48 hours.

On September 2, 1990, plaintiffs received a letter from TWA, signed by

Mr. J.A. Butler, Customer Relations-Baggage Service, apologizing for TWA's
failure to locate the missing luggage and requesting plaintiffs to accomplish a
passenger property questionnaire to facilitate a further intensive and
computerized search for the lost luggage. Plaintiffs duly accomplished the
passenger property questionnaire, taking pains to write down in detail the
contents of each missing baggage. The total value of the lost items amounted to
$11,283.79

On September 20, 1990, plaintiffs' counsel wrote TWA thru its General
Sales Manager in the Philippines, Daniel Tuason, with office address at Ground
Floor, Saville Building, Sen. Gil J. Puyat Avenue corner Paseo de Roxas,
Makati, Metro Manila demanding indemnification for the grave damage and
injury suffered by the plaintiffs.

TWA again assured plaintiffs that intensive search was being conducted.

On October 8, 1990, TWA offered to amicably settle the case by giving

plaintiffs-appellants two options: (a) transportation credit for future TWA travel
or (b) cash settlement. Five months lapsed without any result on TWA's
intensive search.

On January 3, 1991, plaintiffs-appellants opted for transportation credit

for future TWA travel

On January 11, 1991, TWA disregarded plaintiffs' option and

unilaterally declared the payment of $2,560.00 as constituting full satisfaction of
the plaintiffs' claim.

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 6

 On July 19, 1991, plaintiffs accepted the check for $2,560.00 as partial
payment for the actual cost of their lost baggages and their contents.

Despite demands by plaintiffs, TWA failed and refused without just

cause to indemnify and redress plaintiffs for the grave injury and damages they
have suffered. 4(4)

Purita S. Mapa, Carmina S. Mapa, and Cornelio P. Mapa (herein petitioners)

then filed with the trial court on 1 August 1991 a complaint 5(5) for damages, 6(6) which
was docketed as Civil Case No. Q-91-9620. Before a responsive pleading was filed,
the petitioners filed an Amended Complaint. 7(7) They prayed that after due trial
private respondent Trans-World Airlines, Inc. (hereafter, TWA), be ordered to pay
them the following amounts: (1) US$8,723.79, or its equivalent in Philippine
currency, representing the cost of the lost luggage and its contents; (2) US$2,949.50,
or its equivalent in Philippine currency, representing the cost of hotel, board and
lodging, and communication expenses; (3) P1 million, by way of moral damages; (4)
P1 million, by way of exemplary damages, with legal interest on said amounts from
the date of extrajudicial demand thereof; and (5) P500,000.00 as attorney's fees, cost
of the suit, and other expenses of litigation. 8(8)

On 26 February 1992, TWA filed its Answer to the Amended Complaint

raising, as special and affirmative defense, lack of jurisdiction of Philippine courts
over the action for damages in that pursuant to Article 28(1) of the Warsaw
Convention, the action could only be brought either in Bangkok where the contract
was entered into, or in Boston which was the place of destination, or in Kansas City
which is the carrier's domicile and principal place of business.

TWA further alleged that pursuant to the Warsaw Convention and the Notice
of Baggage Limitations at the back of the tickets, its liability to the petitioners is
limited to US$9.07 per pound, or US$20.00 per kilo, which is in lieu of actual and
compensatory damages. Even assuming that petitioners' bag weighed the maximum
acceptable weight of 70 pounds, TWA's maximum liability is $640.00 per bag or
$2,560.00 for the four pieces of baggage, which the petitioners have been offered and
have accepted. TWA also submitted that it could not be liable for moral and
exemplary damages and attorney's fees because it did not act in a wanton, fraudulent,
reckless, oppressive, or malevolent manner. 9(9)

On 7 February 1992, the petitioners filed their second Amended Complaint

10(10) to include a claim of US$2,500, or its equivalent in Philippine Currency,
representing the additional replacement cost of the items and personal effects
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 7
 contained in their lost luggage; and US$4,500 representing the travel expenses, hotel,
lodging, food and other expenses of petitioner Cornelio Mapa, who was constrained to
join his family in Boston to extend the necessary assistance in connection with the lost
luggage.

After the filing of TWA's Answer to the second Amended Complaint, 11(11) and
petitioners' Reply thereto, the trial court gave TWA ten days within which to submit a
memorandum in support of its affirmative defenses; after which the incident would be
deemed submitted for resolution. 1(12)2 However, after TWA filed its Memorandum,
13(13) the trial court gave the petitioners five days within which to file a reply
memorandum; and TWA, two days from receipt of the latter to file its comment
thereon. 14(14) The petitioners then filed their Opposition (by way of Reply
Memorandum) 15(15) to which TWA filed a Reply. 16(16) Thereafter, the petitioners
submitted a Rejoinder 17(17) ; TWA, a Surrejoinder. 18(18)

On 24 July 1992, the trial court issued an Order 19(19) dismissing the case for
lack of jurisdiction in light of Article 28(1) of the Warsaw Convention. Thus:

It is plaintiffs' theory that the Warsaw Convention does not apply to the
instant case because plaintiffs' contract of transportation does not constitute
"international transportation" as defined in said convention. This however is
belied by the Passenger Property Questionnaire which is Annex C of plaintiffs'
amended complaint. Page two of said questionnaire accomplished by plaintiffs
under the heading "Your Complete Itinerary" shows that the TWA tickets issued
to the plaintiffs form part of the contract of transportation to be performed from
Manila to the United States. Since the Philippines and the United States are
parties to the convention, plaintiffs' contracts of transportation come within the
meaning of International Transportation.

xxx xxx xxx

On the basis of the foregoing, the Court holds that the Warsaw
Convention is applicable to the case at bar, even if the basis of plaintiffs' present
action is breach of contract of carriage under the New Civil Code.

The next question to be resolved is whether or not the Court has

jurisdiction to try the present case in the light of the provision Art. 28(1)
above-quoted.

Under Art. 28(1) supra, a complaint for damages against an air carrier
can be instituted only in any of the following places/courts:

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 8

 (1) The court of the domicile of the carrier;

(2) The court of its principal place of business;

(3) The court where it has a place of business through which the
contract had been made;

(4) The court of the place of destination.

In interpreting the provision of Art. 28(1) of the Warsaw Convention, the

Supreme Court in the same case of Augusto Benedicto Santos vs. Northwest
Airlines held:

Whether Article 28(1) refers to jurisdiction or only to venue is a

question over which authorities are sharply divided. While the petitioner
cites several cases holding that Article 28(1) refers to venue rather that
jurisdiction, there are later cases cited by the private respondent
supporting the conclusion that the provision is jurisdictional.

Venue and jurisdiction are entirely distinct matters. Jurisdiction

may not be conferred by consent or waiver upon a court which otherwise
would have no jurisdiction over the subject-matter of an action; but the
venue of an action is fixed by statute may be changed by the consent of
the parties and an objection that the plaintiff brought his suit in the
wrong country may be waived by the failure of the defendant to make a
timely objection. In either case, the court may render a valid judgment.
Rules as to jurisdiction can never be left to the consent or agreement of
the parties, whether or not a prohibition exists against their alteration.

A number of reasons tends to support the characterization of

Article 28(1) as jurisdiction and not a venue provision. First, the
wording of Article 32, which indicates the places where the action for
damages "must" be brought, underscores the mandatory nature of Article
28(1). Second, this characterization is consistent with one of the
objectives of the Convention, which is to "regulate in a uniform manner
the conditions of international transportation by air." Third, the
Convention does not contain any provision prescribing rules of
jurisdiction other than Article 28(1), which means that the phrase "rules
as to jurisdiction" used in Article 32 must refer only to Article 28(1). In
fact, the last sentence of Article 32 specifically deals with the exclusive
enumeration in Article 28(1) as "jurisdiction," which, as such, cannot be
left to the will of the parties regardless of the time when the damage
occurred."
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 9
 It has been shown by the defendant that the domicile of the defendant
Trans World Airlines, Inc. is Kansas City, Missouri, its principal place of
business is also in Kansas City, Missouri, the carrier's place of business through
which the contracts were made is Bangkok (Annexes A and A-1, Amended
Complaint), and the place of destination was Boston.

The Philippines not being one of the places specified in Art. 28(1)
abovequoted where the complaint may be instituted, this Court therefore, does
not have jurisdiction over the present case.

Evidently discontented with the trial court's order, the petitioners appealed to
the Court of Appeals, contending that the lower court erred in not holding that (1) it
has jurisdiction over the instant case and (2) the Warsaw Convention is inapplicable in
the instant case because the subject matter of the case is not included within the
coverage of the said convention. 20(20) They claimed that their cause of action could be
based on breach of contract of air carriage founded on Articles 1733, 1734, 1735,
1755, and 1756 of the New Civil Code governing common carriers or Article 2176 of
the same Code governing tort or quasi-delict.

The appellate court disagreed with the petitioners and affirmed the order of the
trial court. It held that the Warsaw Convention is the law which governs the dispute
between the petitioners and TWA because what is involved in international
transportation defined by said Convention in Article I(2). This holding is founded on
its determination that the two TWA tickets for Los Angeles-New York-Boston-St.
Louis-Chicago purchased in Bangkok, Thailand, were issued in conjunction with, and
therefore formed part of, the contract of transportation performed from Manila,
Philippines, to the United States.

The respondent court further held that the cause of action of the petitioners
arose from the loss of the four checked pieces of baggage, which then falls under
Article 18(1), Chapter III (Liability of the Carrier) of the Warsaw Convention. 21(21)
Pursuant to Article 24(1) of the Convention, all actions for damages, whether based
on tort, code law of common law, arising from loss of baggage under Article 18 of the
Warsaw Convention, can only be brought subject to the conditions and limits set forth
in the Warsaw Convention. Article 28(1) thereof sets forth conditions and limits in
that the action for damages may be instituted only in the territory of one of the High
Contracting Parties, before the court of (1) the domicile of the carrier, (2) the carrier's
principal place of business, (3) the place of business through which the contract has
been made, or (4) the place of destination. Since the Philippines is not one of these
places, a Philippine Court, like the RTC, has no jurisdiction over the complaint for
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 10
 damages.

Respondent Court of Appeals likewise held that the petitioners could not claim
application of Articles 1733, 1734, 1735, 1755, and 1756 of the New Civil code on
common carriers without taking into consideration Article 1753 of the same Code,
which provides that the law of the country to which the goods are to be transported
shall govern the liability of the common carrier for their loss, destruction, or
deterioration. Since the country of ultimate destination is Chicago, the law of Chicago
shall govern the liability of TWA for the loss of the four pieces of baggage. Neither is
Article 2176 of the New Civil code on torts or quasi-delicts applicable in view of the
private international law principle of lex loci delicti commissi. 22(22) In addition,
comformably with Santos III v. Northwest Orient Airlines, 23(23) mere allegation of
willful misconduct resulting in a tort is insufficient to exclude the case from the
comprehension of the Warsaw Convention.

Failing in their bid to reconsider the decision, the petitioners filed this petition.
They aver that respondent Court of Appeals gravely erred (1) in holding that the
Warsaw Convention is applicable to this case and (2) in applying Article 1753 of the
Civil Code and the principle of lex loci delicti commissi. 24(24)

We resolved to give due course to the petition after the filing by TWA of its
Comment on the petition and noted without action for the reasons stated in the
resolution of 25 September 1996 petitioners' Reply and Rejoinder. We then required
the parties to submit their respective memoranda. They did in due time.

The petitioners insist that the Warsaw Convention is not applicable to their
case because the contracts they had with TWA did not involve an international
transportation. Whether the contracts were of international transportation is to be
solely determined from the TWA tickets issued to them in Bangkok, Thailand, which
showed that their itinerary was Los Angeles-New-York-Boston-St. Louis-Chicago.
Accordingly, since the place of departure (Los Angeles) and the place of destination
(Chicago) are both within the territory of one High Contracting Party, with no agreed
stopping place in a territory subject to the sovereignty, mandate, suzerainty or
authority of another Power, the contracts did not constitute 'international
transportation' as defined by the convention. They also claim to be without legal basis
the contention of TWA that their transportation contracts were of international
character because of the handwritten notations in the tickets re "INT'L TKT
#079-4402956821-2" and INT'L TKT #079-4402956819." Notwithstanding such
notations, the TWA tickets, viz., (a) No. 015:9475:153:304 and (b) No.
015:9475:153:305 did not cease to be for the itinerary therein designated. Besides, it
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 11
 is a fact that petitioners Purita and Carmina Mapa traveled from Manila to Los
Angeles via Philippine Airlines (PAL) by virtue of PAL tickets issued independently
of the TWA tickets.

The pith issue to be resolved under the petitioners' first assigned error is
whether the contracts of transportation between Purita and Carmina Mapa, on the one
hand, and TWA, on the other, were contracts of "international transportation" under
the Warsaw Convention. If they were, then we should sustain the trial court and the
Court of Appeals in light of our ruling in Santos v. Northwest Orient Airlines. 25(25) It
appears clear to us that TWA itself, the trial court, and the Court of Appeals,
impliedly admit that if the sole basis were the two TWA tickets for Los
Angeles-New-York-Boston-St. Louis-Chicago, the contracts cannot be brought within
the term "international transportation," as defined in Article I(2) of the Warsaw
Convention. As provided therein, a contract is one of international transportation
only if

according to the contract made by the parties, the place of departure and
the place of destination, whether or not there be a break in the transportation or
a transshipment, are situated either within the territories of two High
Contracting Parties, or within the territory of a single High Contracting Party, if
there is an agreed stopping place within a territory subject to the sovereignty,
mandate or authority of another power, even though that power is not a party to
this convention.

There are then two categories of international transportation, viz., (1) that
where the place of departure and the place of destination are situated within the
territories of two High Contracting Parties regardless of whether or not there be a
break in the transportation or a transshipment; and (2) that where the place of
departure and the place of destination are within the territory of a single High
Contracting Party if there is an agreed stopping place within a territory subject to the
sovereignty, mandate, or authority of another power, even though the power is not a
party to the Convention.

The High Contracting Parties referred to in the Convention are the signatories
thereto and those which subsequently adhered to it. In the case of the Philippines, the
Convention was concurred in by the Senate, through Resolution No. 19, on 16 May
1950. The Philippine instrument of accession was signed by President Elpidio Quirino
on 13 October 1950 and was deposited with the Polish Government on 9 November
1950. The Convention became applicable to the Philippines on 9 February 1951.
Then, on 23 September 1955, President Ramon Magsaysay issued Proclamation No.

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 12

 201, declaring the Philippines' formal adherence thereto, "to the end that the same and
every article and clause thereof may be observed and fulfilled in good faith by the
Republic of the Philippines and the citizens thereof. 26(26)

The contracts of transportation in this case are evidenced by the two TWA
tickets, No. 015:9475:153:304 and No. 015:9475:153:305, both purchased and issued
in Bangkok, Thailand. On the basis alone of the provisions therein, it is obvious that
the place of departure and the place of destination are all in the territory of the United
States, or of a single High Contracting Party. The contracts, therefore, cannot come
within the purview of the first category of international transportation. Neither can it
be under the second category since there was NO agreed stopping place within a
territory subject to the sovereignty, mandate, or authority of another power.

The only way to bring the contracts between Purita and Carmina Mapa, on the
one hand, and TWA, on the other, within the first category of "international
transportation" is to link them with, or to make them an integral part of, the
Manila-Los Angeles travel of Purita and Carmina through PAL aircraft. The
"linkages" which have been pointed out by the TWA, the trial court, and the Court of
Appeals are (1) the handwritten notations, viz., INT'L TKT #079-4402956821-2 and
INT'L TKT #079-4402956819, on the two TWA tickets; and (2) the entries made by
petitioners Purita and Carmina Mapa in column YOUR COMPLETE ITINERARY in
TWA's Passenger Property Questionnaire, wherein they mentioned their travel from
Manila to Los Angeles in flight PR 102.

The alleged "international tickets" mentioned in the notations in conjunction

with which the two TWA tickets were issued were not presented.. Clearly then, there
is at all no factual basis of the finding that the TWA tickets were issued in conjunction
with the international tickets, which are even, at least as of now, non-existent.

As regards the petitioner's entry in YOUR COMPLETE ITINERARY column

of the Passenger Property Questionnaire wherein they included the Manila-Los
Angeles travel, it must be pointed out that this was made on 4 September 1990 27(27) by
petitioners Purita and Carmina Mapa, and only in connection with their claim for their
lost pieces of baggage. The loss occurred much earlier, or on 27 August 1990. The
entry can by no means be considered as a part of, or supplement to, their contracts of
transportation evidenced by the TWA tickets which covered transportation within the
United States only.

It must be underscored that the first category of international transportation

under the Warsaw Convention is based on "the contract made by the parties." TWA
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 13
 does not claim that the Manila-Los Angeles contracts of transportation which brought
Purita and Carmina to Los Angeles were also its contracts. It does not deny the
assertion of the petitioners that those contracts were independent of the TWA tickets
issued in Bangkok, Thailand. No evidence was offered that TWA and PAL had an
agreement concerning transportation of passengers from points of departures not
served with aircrafts of one or the other. There could have been no difficulty for such
agreement, since TWA admitted without qualification in paragraph 1 of its Answer
28(28) to the second Amended Complaint the allegation in paragraph 1.1 of the latter
29(29) that TWA "is a foreign corporation licensed to do business in the Philippines
with office address at Ground Floor, Saville Building, Sen. Gil. J. Puyat Avenue,
corner Paseo de Roxas, Makati, Metro Manila."

TWA relies on Article I(3) of the Convention, which provides as follows:

3. A carriage to be performed by several successive air carriers is

deemed, for the purposes of this Convention, to be one undivided carriage, if it
has been regarded by the parties as a single operation, whether it had been
agreed upon under the form of a single contract or a series of contracts, and it
shall not lose its international character merely because one contract or a series
of contracts is to be performed entirely within a territory subject to the
sovereignty, suzerainty, mandate, or authority of the same High Contracting
Party.

It also points to Article 15 of the IATA Recommend Practice 1724, which

provides: Carriage to be performed by several successive carriers under one ticket, or
under a ticket and any conjunction ticket issued in connection therewith, is regarded
as a single operation." 30(30)

The flaw of respondents' position is the presumption that the parties have
"regarded" as an "undivided carriage" or as a "single operation" the carriage from
Manila to Los Angeles through PAL then to New York-Boston-St. Louis-Chicago
through TWA. The dismissal then of the second Amended Complaint by the trial court
and the Court of Appeals' affirmance of the dismissal were not based on indubitable
facts or grounds, but on inferences without established factual basis.

TWA should have offered evidence for its affirmative defenses at the
preliminary hearing therefor. Section 5 of Rule 16 of the Rules of Court expressly
provides:

SEC. 5. Pleading grounds as affirmative defenses. — Any of the

grounds for dismissal provided for in this rule, except improper venue, may be
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 14
 pleaded as an affirmative defense, and a preliminary hearing may be had thereon
as if a motion to dismiss had been filed.

Without any further evidence as earlier discussed, the trial court should have
denied the affirmative defense of lack of jurisdiction because it did not appear to be
indubitable. Section 3 of Rule 16 of the Rules of Court provides:

SEC. 3. Hearing and order. — After hearing the court may deny or
grant the motion or allow amendment of pleading, or may defer the hearing and
determination of the motion until the trial if the ground alleged therein does not
appear to be indubitable. cda

WHEREFORE, the instant petition is GRANTED and the challenged decision

of 31 May 1995 of respondent Court of Appeals in CA-G.R. CV No. 39896, as well as
the Order of 24 July 1992 of the Regional Trial Court of Quezon City, Branch 102, in
Civil Case No. Q-91-9620, is REVERSED and SET ASIDE.

The Regional Trial Court of Quezon City, Branch 102, is hereby DIRECTED
to proceed with the pre-trial, if it has not been terminated, and with the trial on the
merits of the case and then to render judgment thereon, taking into account the
foregoing observations on the issue of jurisdiction.

SO ORDERED.

Narvasa, C .J ., Melo, Francisco and Panganiban, JJ., concur.

Footnotes
1. The full title is Warsaw Convention for Unification of Certain Rules Relating to
International Carriage by Air. This was signed at Warsaw, Poland on 12 October
1929. See Philippine Treaty Series, Vol. II, 577-590 [1968].
2. Rollo, 38-52. Per Lantin, J., J., with Austria-Martinez, A. and Salas, B., JJ.,
concurring.
3. Original Records (OR), Civil Case No. Q-91-9620, 259-264. Per Judge Perlita J. Tria
Tirona.
4. Rollo, 41-45.
5. OR, 1-7.
6. For lost luggage and its contents; expenses for hotel, board and lodging, and
communication; moral damages; exemplary damages; attorney's fees; and expenses of
litigation.
7. OR, 22 et seq.
8. Id., 27-28.
9. Id., 48-50.
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 15
 10. OR, 73-82.
11. Id., 100-106.
12. Id., 118
13. Id., 120-130.
14. Id., 173.
15. Id., 176-186.
16. Id., 197-202.
17. Id., 213-217.
18. Id., 218-225.
19. Id., 259-264.
20. Rollo, p. 41.
21. It provides:
ARTICLE 18. (1) The carrier shall be liable for damage sustained in
the event of the destruction or loss of, or of damage to, any baggage or any
goods, if the recurrence which caused the damage so sustained took place during
the transportation by air.
22. Law of the place of wrong.
23. 210 SCRA 256, 274 [1992].
24. Rollo, 24-25.
25. Supra, note 23.
26. Santos III v. Northwest Orient Airlines, supra, note 23 at pages 260-261.
27. OR, 34.
28. OR, 100.
29. Id., 73.
30. OR, 137.

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 16

 Endnotes

1 (Popup - Popup)
1. The full title is Warsaw Convention for Unification of Certain Rules Relating to
International Carriage by Air. This was signed at Warsaw, Poland on 12 October
1929. See Philippine Treaty Series, Vol. II, 577-590 [1968].

2 (Popup - Popup)
2. Rollo, 38-52. Per Lantin, J., J., with Austria-Martinez, A. and Salas, B., JJ.,
concurring.

3 (Popup - Popup)
3. Original Records (OR), Civil Case No. Q-91-9620, 259-264. Per Judge Perlita J. Tria
Tirona.

4 (Popup - Popup)
4. Rollo, 41-45.

5 (Popup - Popup)
5. OR, 1-7.

6 (Popup - Popup)
6. For lost luggage and its contents; expenses for hotel, board and lodging, and
communication; moral damages; exemplary damages; attorney's fees; and expenses of
litigation.

7 (Popup - Popup)
7. OR, 22 et seq.

8 (Popup - Popup)
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 17
 8. Id., 27-28.

9 (Popup - Popup)
9. Id., 48-50.

10 (Popup - Popup)
10. OR, 73-82.

11 (Popup - Popup)
11. Id., 100-106.

12 (Popup - Popup)
12. Id., 118

13 (Popup - Popup)
13. Id., 120-130.

14 (Popup - Popup)
14. Id., 173.

15 (Popup - Popup)
15. Id., 176-186.

16 (Popup - Popup)
16. Id., 197-202.

17 (Popup - Popup)

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 18

 17. Id., 213-217.

18 (Popup - Popup)
18. Id., 218-225.

19 (Popup - Popup)
19. Id., 259-264.

20 (Popup - Popup)
20. Rollo, p. 41.

21 (Popup - Popup)
21. It provides:

ARTICLE 18. (1) The carrier shall be liable for damage sustained in the event of the
destruction or loss of, or of damage to, any baggage or any goods, if the recurrence
which caused the damage so sustained took place during the transportation by air.

22 (Popup - Popup)
22. Law of the place of wrong.

23 (Popup - Popup)
23. 210 SCRA 256, 274 [1992].

24 (Popup - Popup)
24. Rollo, 24-25.

25 (Popup - Popup)
25. Supra, note 23.
Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 19
 26 (Popup - Popup)
26. Santos III v. Northwest Orient Airlines, supra, note 23 at pages 260-261.

27 (Popup - Popup)
27. OR, 34.

28 (Popup - Popup)
28. OR, 100.

29 (Popup - Popup)
29. Id., 73.

30 (Popup - Popup)
30. OR, 137.

Copyright 1994-2017 CD Technologies Asia, Inc. Jurisprudence 1901 to 2016 20